B (4:51)

Yeah, full on. Can we not just have like one day, one evening of normalcy, of kind of enjoying the moment and not having to worry about this? I mean, so many things. It's just, it's just, you know, as my daughter says all the time now, all the things, all the things right now are bad news is so depressing and it can be overwhelming. And good for you, everyone who's like hearing this because you're people who are dedicated to staying informed, to keeping up with these things. And we try to of course help you do that. But man, hopefully everybody was able to take a beat on Halloween. Watch the kids walk around, hand out some candy, talk to your neighbors and like Just put it behind you, at least for a couple of hours.

A (5:35)

Yeah. Community is really important. All right, let's kick this show off with the additional filings we mentioned last week that were due on October 30th in Lindsey Halligan's case against Jim Comey. Now, I want to start by telling everybody a little bit about Bronston v. United States. Bronston was a filmmaker who went bankrupt in the early 70s. And in bankruptcy court, he was asked by prosecutors whether he had a Swiss bank account, and he said no. And that was true, Andy, because even though he did, like the day before, have a Swiss bank account, he had closed it so well.

B (6:15)

I mean, technicality. That is what it is.

A (6:19)

So if a prosecutor asks you, do you have a Swiss bank account? And you don't anymore, you say no. He was then asked if he ever had a Swiss bank account, and he answered, the company had one for about six months. Now, that was also literally true. And the prosecutor never asked the follow up, but have you ever had a personal Swiss bank account ever? They didn't do that. So even though he might have been trying to deceive the prosecutor, both answers were literally true on their face. Now, he was convicted of perjury, and the conviction was held up on appeal. But the Supreme Court overturned that perjury conviction, saying that the burden is actually on the prosecutors to ask precise questions. This ruling came down in 1973. It's been used multiple times. A person can't be brought up on perjury charges for literally true stuff, even things that are meant to deceive. The proper questioning is part of the fundamental adversarial process. Okay. And the famous quote from the Bronson case is from Chief Justice Berger, who wrote, precise questioning is imperative as a predicate for the offense of perjury. And Comey, of course, quotes Justice Berger in his motion to dismiss. We also heard this in the Clinton case with Monica Lewinsky. What are sexual relations? Tell me what the meaning of is, is, or were you ever alone with her? I do not recall. That's a literally true statement, and it's real hard to prove that it's not. So that's what he's getting at with this Bronston motion, particularly in the instance with Comey. Now we'll get into this. But Comey contends that even his literally true statement was not meant to deceive like Bronston's was. It's just that Ted Cruz sucks at asking questions, Right?

B (8:10)

Yeah. Yeah. And it really takes some kind of attention and peeling this thing back to realize just how wildly off base Cruz's questions were. And the Bronson holding basically stands for this principle that the question and the answer must be absolutely unambiguous. They have to be completely in lockstep. There can be no wiggle room. Because if you are going to convict someone of a crime and potentially take away their liberty over making a false statement, there must be like no doubt that the statement was false and in violation of the statute.

A (8:44)

Yeah. It's kind of why Comey brought up in the selective prosecution that there were no similarly situated people. When Jeff Sessions says, I did not have communications with the Russians, in his mind, he didn't have any formal meetings set up with and to communicate with the Russians. But yes, he did informally meet them and talk to them. But the question was. That wasn't the question.

B (9:07)

Right.

A (9:09)

And his answer was literally true.

B (9:11)

Right.

A (9:12)

If in his mind. Right. Because you gotta. You gotta willfully be trying to lie to somebody.

B (9:16)

Yeah. You have to. Prosecutor has to prove a willful intent to deceive. And that can be very hard if there's wiggle room between the question and the answer. So Comey's motion opens with the following. Count one of the indictment seeks to punish Mr. Comey for seconds of testimony he gave in response to a compound and ambiguous questioning. But long standing principles of criminal law make clear that the government cannot prove a violation of 18 U.S.C. section 1001A.2 unless it establishes that the defendant gave false answers to precise questions. Here, the indictment conspicuously omits the lengthy, confusing questions that prompted Mr. Comey's testimony. Specifically, after speaking for more than a minute. Ted. Senator ted Cruz asked Mr. Comey to recall statements he had made three years earlier and to simultaneously address statements that Senator Cruz incorrectly claimed were made by Andrew McCabe. We know that guy. That's me. The former Deputy Director of the Federal Bureau of Investigation. In doing so, Senator Cruz never indicated that he wanted Mr. Comey to address the statements or activities of any person except for Mr. McCabe. Viewed in context, Senator Cruz's questions cannot form the basis for a violation of Section 1001 because they were fundamentally ambiguous. And regardless, Mr. Comey's answers to them were literally true. Count one, thus must be dismissed under Federal rule of Criminal Procedure 12b. 3a. And count two should be dismissed for the same reason to the extent that it rests on those same alleged false statements and for the independent reason that it deprives Mr. Comey of his right to notice of the charge against him.

A (11:11)

Yeah, because we talked about that right. Like, you can't charge me unless you can spell out what I'm being charged with. This is too ambiguous.

B (11:19)

You can't defend yourself if you don't know what you're defending yourself against. It's not possible.

A (11:24)

And he brings that up, too, in the grand jury proceeding motion, which we'll get to shortly. Now, Ted Cruz's questions were ambiguous, referring to Comey's previous testimony as being about the Clinton admir administration and not the Clinton investigation. And because he spent a bunch of time talking about you, Andy, when his Original testimony from 2017 was about Dan Richmond, that makes it a problem, too. His statement that he stands by his previous testimony is literally true. And in footnote eight, his lawyers write, Mr. Comey firmly maintains that his prior testimony was truthful. But for purposes of the literal truth defense, the truthfulness of the prior Testimony is irrelevant. Mr. Comey can truthfully stand by prior testimony even if the government were correct. And it's not that the prior testimony was false. So even if he lied his face off in 2017, he wouldn't be lying if he said he stood by it.

B (12:20)

That's right.

A (12:21)

Accordingly, the statement that Mr. Comey stands by his prior testimony cannot serve as the basis for a false statement charge.

B (12:29)

The motion says. Further, the government cannot incorrectly rewrite his responses to form a false statements charge. Ignoring those details, the government presented an indictment to the grand jury that misstates Mr. Comey's testimony. And what about count two? Well, count two alleges that Mr. Comey violated section 1505 by making false and misleading statements to the Senate Judiciary Committee. The indictment does not, however, specify which false and misleading statements Mr. Comey allegedly made, why they were allegedly false or misleading, or even which investigation he allegedly endeavored to corrupt. The extent of count two rests on the same false statements as count one. That count should also be dismissed for the reasons set forth herein. But as it stands, count two's lack of specificity renders it inherently and separately defective for failing to provide adequate notice to Mr. Comey of the charge against which he must defend.

A (13:31)

Yeah, because count two doesn't say it was the statement in count one that caused this. The. The violation of 1505 obstructing a congressional investigation.

B (13:41)

Yeah, it doesn't really say anything.

A (13:43)

It doesn't. It doesn't say anything. So something really funny came to my attention about the Bronston case. I wanted to bring this up. As I said at the top, he was a movie producer that went bankrupt, and the movie that bankrupted him was called the Fall of the Roman Empire, which is particularly ironic given the Maga obsession with the Roman Empire. Bannon uses the bust of Caesar. Michael Anton uses a pen name from a BC Roman Council. Elon Musk depicts himself as an AI generated gladiator. Musk put on Twitter. Anyone feeling late stage empire vibes? JD Vance says the US is in the late Republican period, like Rome was in when it transitioned into an empire. Curtis Yarvin compares the US to the Roman Empire all the time. They all contend that Rome fell because of immigrants and wokeness and a failure to keep their blood pure and a loss of masculinity in the warrior ethos, all of which necessitates the rise of a Caesar or an authoritarian one man rule. So here we are with the President ordering the prosecution of his political enemies. A very authoritarian thing to do. Possibly being brought down in part by a case about a guy who went bankrupt over a film about the fall of the Roman Empire. It's kind of poetic. It's kind of poetic.

B (15:02)

It really is. It really is. I gotta say. I mean, I wish I knew this guy. Talking about a movie producer in the 1970s who went bankrupt and had allegedly Swiss bank accounts. I mean, can you imagine the life that dude led? No. Hollywood in the 70s was like a total, I mean, insane asylum anyway. I just imagine like he lived in a mountain of cocaine glasses. Yeah. Driving around and God knows what. Like a big Jag or some. Some ostentatiously crazy sports car. And. Yeah. I don't know. I wish I'd known him then. Of course, there was only two, so that wouldn't have worked.

A (15:40)

But now I want to bring up the fact that in the Bronston case, that was a perjury charge, which is different from a 1001 charge. However, the Fourth Circuit has held, and it's never been overturned, that a 1001 charge. The Bronston Literal Truth motion also applies to a 1001 charge because. Yeah, and that's the quote that they use all the time. The predicate is precise questioning. You can't bring a false statements charge if the question sucks.

B (16:10)

You can't.

A (16:11)

And Ted Cruz was talking about you, but referring to 2017 testimony that was about Dan Richmond.

B (16:17)

That's right.

A (16:17)

Which is why you and I couldn't figure out what the hell he was even being charged with.

B (16:20)

Of course. And the example you used before of Jeff Sessions. Jeff Sessions testimony was referred to DOJ for investigation. We wanted to open an investigation to follow up on the referral. We asked Several times for authority to do that. The department refused to essentially answer the question. And so we gave that referral to Robert Mueller when he was appointed special counsel. The Mueller team eventually decided not to pursue it, which is fine. That happens often with. With referrals. But that was a much more direct line of questioning. Not direct enough, apparently, but more direct than this mess with Ted Cruz. And that's why he brings it up as a. Yeah, exactly.

A (17:08)

So he actually kind of lied more than I did. He should be brought up on charges since he's not. That is evidence that you are selectively prosecuting me, and that's why I brought it up in the vindictive, selective motion to dismiss that we talked about last week.

B (17:22)

That's right. So despite all the claims of nonsensical weaponization and all this other crap that we've listened to for years, Robert Mueller and his team of experienced, careful prosecutors looked very closely, presumably at the Jeff Sessions situation and decided not to pursue it. So, like, that shows you how hard these cases are to make and how high the bar is to go forward with a perjury or thousand one case. And the fact that this Comey thing got indicted on that grounds is really kind of ridiculous.

A (17:51)

Yeah. And what's interesting is that the other three things that the other three similarly situated people who weren't indicted that he brought up in his vindictive and selective prosecution case, one of them's about Steve Mnuchin, who owned a movie studio.

B (18:09)

Okay, now you're going deep.

A (18:12)

But I digress, because the lie wasn't about whether or not he had a Swiss bank account. The lie was that he never used an auto pen. But that's still the auto pen thing. It's like everything old is new, new again. It's just those little things.

B (18:25)

I'm just guessing that Mnuchin just does not have Bronston's panache. That's just a guess. I don't know, but that's. I feel like they're very different.

A (18:33)

He wants to.

B (18:34)

He wants. But he's not that guy.

A (18:37)

No, he's just not. All right, next up, even if the Bronston literal truth defense fails, the grand jury process was apparently tainted by the only witness Lindsay Halligan brought in. We're going to talk about that after this quick break. Stick around. We'll be right back. All right, everybody, welcome back. All right, let's take a look at Comey's motion to dismiss and request for grand jury materials. Because he's alleging the government engaged in misconduct with regard to the grand jury proceedings. And this is Banana pants Andy. I knew there was something up with the FBI guy, but, like, we'll get there. Listen. It opens with the record in this case raises a significant risk that irregularities in the grand jury process may have influenced the grand jury to return an indictment. Thus, defendant Comey respectfully requests that the court direct the government to disclose all the transcripts and audio recordings of all proceedings before the grand jury in this case. Although proceedings before the grand jury are usually entitled to a presumption of regularity, meaning we're supposed to trust you government. The abundant irregularities surrounding the return of this indictment in this case overcome that presumption and warrant disclosure of grand jury records.

B (20:01)

The motion continues, those irregularities may create a basis for dismissing the indictment. As Mr. Comey has explained in two motions to dismiss, the indictment arises from multiple constitutional violations. The those violations warrant dismissal regardless of any grand jury misconduct, but they also support a reasonable inference of irregularities before the grand jury. Additionally, the circumstances surrounding the return of the indictment in this case indicate that the government may have misstated key factual and legal issues to the grand jury.

A (20:40)

And that's a. That's a big accusation. And this is what you and I were had also discussed, like grand jury inappropriate misconduct and stuff like, what did she tell them in order to get this indictment? What did she leave out? She had to lie right to their faces in order to get this done. But there's a couple other issues in here too. But that Halligan may have deceived the grand jury isn't just. It's not the only part of this. Comey argues the totality of the issues in the case, when taken together, warrant at least a review of the grand jury materials.

B (21:14)

And that is really key because the goal here, unlike most motions to dismiss, the goal here, I mean, it would be great if the judge granted the motion and the thing were dismissed, but that's realistically probably not going to happen. The goal here is to pull the COVID off the can, bring out the can opener, get that thing open so you can get inside the grand jury process. You get to see what the witness said, who went in, what they said, how the prosecutor conducted herself. And that kind of discovery process that will likely result from this motion opens up all kinds of other possibilities that you could use to support this motion to. To dismiss or use later at trial in. In your own defense. So this is like trying to open the door on the grand jury and.

A (22:03)

Other people who are being charged by this Department of Justice, Letitia James, and can bring up the fact that there was grand jury misconduct. So if I'm Tish James, I'm waiting to see what happens here because I can say I also want the grand jury materials, because look at what she did in this grand jury. That's another piece of evidence supporting the fact that my grand jury stuff should be released to me, or at least the indication that this FBI guy was tainted, which we'll talk about in a second. And here's. Here's the way that they summarize that the totality of the issues lend to this motion to dismiss. It says, despite the absence of any lawful basis for her appointment as interim U.S. attorney, Lindsey Halligan, a former insurance lawyer who lacks any prosecutorial experience, by the way, that's in this motion. That's not me. That's right. That's what they say. Because that sounds like me, but it's them. Presented this case to the grand jury alone. She secured an indictment only after a highly unusual procedure, which included keeping the grand jury in court well past normal business hours. What is more, the agent who served as a witness in the proceedings may have been exposed to Mr. Comey's privileged communications with his attorneys and thus may have conveyed that information to the grand jury. Each of those irregularities provides an independent basis for the court to permit the defense to review the record of the grand jury proceedings in this case.

B (23:37)

Yeah. So first, she's not supposed to be there. Right? The federal rules of criminal procedure require that a lawyer representing the United States present the case to the grand jury. All of that is covered in Comey's previous motion to dismiss the charges based on the unlawful appointment of the only person who signed the indictment. So that's also a factor here in a potential dismissal on grand jury problems because she's so inexperienced that she could have made errors in her presentation. That inexperience is evidenced by her errors, which were, you know, signing the two documents. Right. She submitted two separate conflicting indictments to the judge.

A (24:23)

Yeah. So next, she kept the jury way past normal business hours. Why is that important? The first three count indictment was a no bill. Comey argues that keeping them really late could give them the impression that they don't get to leave until they return. A true bill. And what if she told them that? What if she said, we're going to be here all night until you give me a true bill? Like, what if she said. Actually said something like that and given her text messages to Anna Bauer, or just her inexperience in general, her mistakes on signing two different conflicting indictments that all combined is reason enough to say we need to hear these grand jury tapes to see if she said that. Why did she keep them so late? Were they pressured to return a true bill so that they could go home or eat?

B (25:11)

Yeah.

A (25:12)

It says, undeterred by her initial failure, Ms. Halligan did not excuse the grand jury for the day. Instead, the grand jury remained at the courthouse into the evening hours to vote on a second indictment that was ultimately returned at 6:47pm that highly unusual decision could have sent the message that the grand jurors would not be permitted to leave unless and until they returned a true bill. And if Ms. Halligan used words to suggest that message, it would further support dismissing this indictment. That's like, I didn't realize she kept until 7pm and they also mentioned several times in this motion that it was by a two vote margin.

B (25:49)

Yeah, that's razor thin. And they got a no bill on.

A (25:52)

An additional count, so they kept him there till seven. It's like Tim Meadows in Mean Girls. You know when he's like, I will keep you here all night. We have to release him at 4. I will keep you here until 4. She kept him there. And if I'm there till 7 o' clock at night, I'm like, yeah, fine, guilty, whatever. Just get me out of here. If she's going to keep me here all night, geez, I'm not going to do that. But you know, some people might.

B (26:19)

But if that's what it took to get an additional vote or two, so who knows? Okay, so next up is probably the biggest issue facing the government.

A (26:30)

This is bananas.

B (26:33)

Yeah, this is crazy.

A (26:34)

I can't believe this.

B (26:35)

I'm wondering how they even found out about this, but I know. Here we go. So Halligan appears to have called one of the lead FBI case agents as a witness, which in and of itself is not strange or abnormal. However, here comes the strange part. Before that agent testified before the grand jury, he alerted the FBI Office of General Counsel that he might have been exposed to some potentially privileged communications between Comey and Daniel Richmond. Now the motion puts it this way is a Despite his apparent awareness of his potential exposure to privileged material, the agent nevertheless apparently served as a witness presenting evidence to the grand jury in this case. The record suggests that an FBI agent who testified before the grand jury was potentially tainted by privileged communications between Mr. Comey and his attorneys, one of whom was likely Mr. Richmond. Yet the agent still proceeded to testify in front of the grand jury. There is thus serious concern that the grand jury may have improperly relied on privileged information.

A (27:50)

That's massive. It is. And remember, like these cases, Andy, don't they have entire taint teams to make sure? Of course, nothing privileged, first of all, gets in front of anybody who's going to testify anywhere where there's filter teams and taint teams and.

B (28:08)

Yeah, and of course, the way that works, the taint or filter team gets to look at everything for the purpose of identifying things that are privileged and taking them out of the bucket so that the only thing left is the non privileged material. And that's what the case agents who are working the case get to look at the people who were part of that taint or filter effort, they never testify because they've been exposed to privileged information that cannot legally be a part of a prosecution.

A (28:38)

Yeah. And you, even if you don't say what that privileged information is, you as a human are tainted by knowing it.

B (28:45)

Of course. That's enough. That is enough. You know, and here they, this is a really compelling argument because remember, what they are trying to do is get access to this grand jury information which would maybe prove this allegation or maybe lead to all kinds of other stuff. So all they have to do is make a credible kind of compelling case on any one of these grounds to have the judge say, you know what, you're right, I'm concerned about what happened in that grand jury room. Let's take a closer look.

A (29:19)

And what I'd like to happen here is, first of all, I've been talking about the fact that I don't think this makes it past Lindsey Halligan's unlawful appointment. Right? Correct. The judge may want to look at the totality of everything before he makes a call on Lindsey Halligan's appointment. He might want to look at the grand jury stuff. They might want to look at everything together. Before he rules on any of these motions. I don't know that he's going to rule on them, you know, consecutively, one at a time. He may, because, you know, in a lot of judges orders, we see, well, I'm going to dismiss this on Lindsey Halligan. But if, and if I didn't, even if, you know how I always talk about the even ifs, even if she was appointed lawfully, she told the grand jury she was going to keep them there until they return or return to Trueville. And even if that's not enough, this guy was tainted by privileged information. And even if, you know how they. You know what I mean? And so I don't know if we're going to See, either a, I'm throwing this out because Lindsey Halligan is the sole person who signed at the end, or if we're going to see a totality, a consideration of all of these motions and a full ruling on all of it so that the judge can say. Because judges like to have even ifs in their back pockets so that they can't be overturned on appeal.

B (30:41)

Yeah, I mean the Halligan disqualification issue is pretty cut and dry on the law, but you have to imagine that if you're considering disqualifying someone for having not been appropriately or lawfully appointed, and you also know from having read this motion that that person may have indeed may likely have committed all sorts of mistakes and, and potentially critical errors in front of the one and only grand jury she'd ever appeared in front of, which was this indictment. Is hard to imagine that that doesn't influence your, your larger conclusion like that this is an un. Salvageable mess.

A (31:30)

Right.

B (31:31)

Right.

A (31:31)

And now we know that a different judge from South Carolina is going to be deciding on Lindsey Halligan's lawful appointment. He will go back to this judge and say, I have found that she's not lawfully appointed. And then I think it's up to this judge to dismiss or not dismiss based on that finding. I don't know if it's up to the other judge to dismiss or not dismiss based on that finding. I think maybe that judge is only trying to.

B (31:58)

I'm not sure how that works. I, I'd assumed that the judge that it goes to because what the question that's before that judge is dismiss on this grounds or not. I think he'll actually make that decision, but we'll see.

A (32:13)

But then if you, if that goes up to the Supreme Court, if the prosecutors, the Trump administration goes up to and the Supreme Court decides unitary executive, he can appoint whoever he wants. Her stuff is awful, which would be funny considering the dismissal of the Jack Smith documents case. And then you go back to all these other motions in this court. So maybe that's the order of operations here. The Clinton guy in South Carolina, that judge will say she's unlawfully appointed. I dismissed the charges. It goes up to the Supreme Court and either Supreme Court lets that stand or not, then they go back down if they let it stand to the rest of this stuff. So because the indictment. Let's go back here really quick. Misstates Ted Cruz's questions. It's facially flawed. So what did Halligan tell the jurors? Did she lie to them? Did she fail to present all the relevant information, given her inexperience and Trump's animus and telling her that she needs to indict him and the fact that she kept them late. So Comey is asking what you and I were asking a couple weeks ago. Did she lie to the grand jury? Did she put up false information? And the only way to know is for Comey to get the grand jury tapes. It says given the highly irregular procedure that led to the indictment, there's a significant risk that the government misrepresented key issues of fact and law to the grand jury. Indeed, as explained further in Comey's concurrently filed motion for a bill of particulars, the indictment itself fails to allege specifics necessary for Comey to understand and defend against the charges.

B (33:45)

They continue to say the highly irregular procedures that led to the indictment increase the risk that the government misstated key legal and factual issues to the grand jury. As a general matter, the departure of a career prosecutor who reportedly determined that there was no probable cause to charge Mr. Comey, the subsequent installation of a White House official with no prosecutorial experience, and the resulting return of an error ridden indictment by themselves support a finding that, quote, inherently suspect procedures were used before the grand jury. Taken together, the circumstances surrounding the return of this indictment establish significant reason to infer the possibility of prejudicial irregularities, to justify. Here you go. Disclosure of the materials. That is the type of misconduct that would support dismissal. So that's what they're shooting at here.

A (34:42)

Yeah. And now, finally, as we predicted, Comey wants a bill of particulars. So in other words, if you don't dismiss because Lindsey Halligan was unlawfully appointed, if you don't dismiss because of the grand jury mess ups, if you don't dismiss because of vindictive and selective prosecution, you gotta tell us what you're charging me with because we don't understand you. So that's basically all this says. It says that the indictment in its current form sheds no light on the alleged factual basis for the conduct at heart in count one. It provides no information about what statements or conduct underlie count two. Mr. Comey can't prepare a defense to the indictment and thus seeks specificity. Given its complete lack of essentials, I award you no points and may God have mercy on your soul. So he can't prepare a defense and you know he's asking for basic stuff here, right?

B (35:33)

Yeah, that's exactly right. So Comey is asking for the. For the date, time, the method of communication for each instance in which he allegedly authorized Richmond to act as an anonymous source regarding the Clinton investigation. Right. That's what, that's what they basically accused him of. So he needs to know those details. Also. He wants to know the people that Comey allegedly told, you know, said to give information to and the substance of those communications. So, in other words, what was actually transmitted by Richmond and to who? As for count two, Comey's team is asking for each allegedly false or misleading statement underlying count two. They want to know the specific question leading to and answered by Comey that underlies the statement. The factual basis for the government's allegation that each statement was false. The factual basis for the government's allegation that Comey knew the statement was false, how Comey corruptly influenced a proceeding, which proceeding, inquiry or investigation he allegedly attempted to influence and then specify any other ways that he allegedly violated 18 USC 1505. So it's the whole gamut of basically every factor detail associated with what they've charged him with.

A (36:53)

Yeah. And if you want to know how to do that, Lindsay Halligan read one of the Jack Smith indictments.

B (36:58)

There you go. Yeah.

A (36:59)

That's how you write one. All right, we have some more news to get to. We're going to talk really briefly about three little words that can completely exonerate Tish James and if they haven't already, which is a charge also brought by Lindsay Halligan. We're going to talk about that after this break. Stick around. We'll be right back.

B (37:26)

Welcome back. Okay. The Comey indictment isn't the only thing Lindsay Halligan is facing some scrutiny for. There's also fundamental flaws, it appears, with the indictment against Letitia James. So this week, Politico wrote the politically charged mortgage fraud indictment against New York Attorney General Letitia James accuses her of lying to lenders in order to get a favorable loan rate on a second home. She then rented the property, the indictment alleges in violation of the terms of the loan she obtained. But there's a glaring issue with this accusation. Yeah, I should say. The mortgage contract James signed does not prohibit renting out the house, according to POLITICO's review of the contract and legal and real estate experts. In fact, the key language in the contract expressly allows renting under certain conditions.

A (38:21)

Yeah. And this is what we talked about when you and I went over the actual Fannie Mae requirements for a second home rider. And it verifies the earlier reporting from the New York Times as well. Politico obtained James's mortgage documents, including her signed second home rider. From the Norfolk Circuit Court County Clerk. The rider, a standard addendum to a mortgage contract developed by Fannie Mae and Freddie Mac, requires James to, quote, maintain exclusive control over the occupancy of the property, including short term rentals. Including short term rentals, including short term rent. The idea is to restrict buyers ability to use a second home as an investment property by hiring a management company and using it primarily to generate income after obtaining the lower loan rates associated with houses purchased as vacation or second homes.

B (39:07)

That final three word phrase in the rider, including short term rentals could be decisive. In plain English, the provision means that James is explicitly permitted to to rent the place out periodically as a short term rental so long as she remains in charge of matters such as the number of tenants and how they use the property. Legal experts say the contract's restrictions bar James from giving, quote, a management firm or any other person or entity any control over the occupancy or the use of the property. So obviously, the theory being like a short term rental, like somebody wants to rent it for the weekend, that's something you would handle yourself as the mortgage holder and the owner of the property.

A (39:54)

Yeah. Now, Halligan has alleged that James used the house as a rental investment property, renting the property to a family of three, but not that she hired a property management company that's not in there. And they found out that it was $1,350 in rents that she collected over the five year period, thirteen fifty dollars that she collected. It suggests she may have made the short term agreement a short term rental that would not violate the terms of her mortgage contract or the federal fraud statutes that she's charged under.

B (40:24)

That's right. So James second home rider also requires her to, quote, keep the property available primarily as a residence for her personal use and enjoyment for at least one year. Now, according to Freddie Mac's 2019 guidance, that means keeping the home available for more than half of the year. Current guidance from Fannie Mae requires the owner of a second home to simply occupy the property, quote, for some portion of the year. Now, the IRS considers a dwelling to be a residence if the owner uses it for personal purposes for either 14 days a year or for at least 10% of the total number of days that the unit is rented out to others. Personal purposes include any day the dwelling is used by a family member or anyone else who does not pay fair or typical rental price, according to the irs. Now this is the IRS standard. We don't know.

A (41:22)

So you don't even have to Per you, she doesn't even have to be there 14 days. It's her family that can be there.

B (41:28)

That's considered, according to the irs, that's enough to make it personal use. So all of these problems, this is why the guy who originally looked at this did not bring this case. Because, like, any lawyer, any prosecutor would look at this and be like, no, sorry. There's just too many problems here. There's too many bad facts, facts that don't support our argument.

A (41:55)

Yeah.

B (41:55)

And especially in a criminal case. Oh, my God. You can't. You don't take crazy chances. Like, this is why the Justice Manual says you don't indict a case unless you believe you have the evidence to convict a trial and maintain that conviction on appeal. Like, you got to be better than this. But it's so bad. Lindsey Halligan is not.

A (42:14)

It's so bad. It's just so bad. Anyway, yeah, we'll keep an eye on both of these cases for you. We got one more quick story before we get to listener questions. This has to do with the whitewashing of what happened on January 6th and Trump exposing Obama's address online in the sentencing of Taylor. Toronto or Toronto. I'm not sure how he pronounces it, but you'll remember he was the guy who put a bunch of guns and ammo in a van and went to Obama's residence. He was sentenced and we'll talk about that case in just a minute. We have to take a quick break, so stick around. We'll be right back. All right, welcome back. Our last story today comes from the post. A U.S. district Court judge on Thursday praised two now suspended federal prosecutors who had been handling the case of a man once accused of participating in the January 6 attack on the Capitol. That defendant is Taylor Taranto, who was in court to be sentenced on an unrelated weapons charge. The Assistant U.S. attorneys Carlos Valdiva and Samuel White were suspended earlier this week after referencing the Capitol attack as a riot carried out by a mob in a sentencing memoir against Taranto. That's according to people familiar with the matter.

B (43:34)

Taranto, whose Jan. 6 charges were dismissed after President Donald Trump's clemency orders on his first day back in office, was convicted for a, quote, perpetrated hoax that he committed two years later, prosecutors argued he lied on a live stream footage about having a car bomb and saying he would drive it into the National Institute of Standards and Technology, according to court records. He also reposted an address of former President Barack Obama after Trump posted it to Social media. And then he drove through the Kalorama neighborhood in search of, quote, tunnels leading to Obama and other high profile individual homes.

A (44:19)

Now, Judge Carl Nichols openly commended the suspended prosecutors before handing down his sentence, describing their work as the best and saying they held the higher standard of professionalism. Quote, in my view, they did a truly excellent job. The government's initial sentencing filing had been replaced by Wednesday afternoon with a new document that did not mention January 6th or Trump's social media post. Trump doxxed Obama. The memo was also removed from the public docket.

B (44:47)

Nichols noted the government's submission of two sentencing briefs. He said it wasn't entirely clear to him how the first brief was sealed and he intends to unseal it unless the government can submit its reasoning in writing within a week. The judge called the freshly submitted sentencing memo, quote, extremely late breaking. Nichols sentenced him to 21 months of incarceration for which Taranto amounted to time served because he's already been in for almost two years, I guess, or maybe two years or more. He placed Taranto on 36 months of supervised release and ordered him to participate in cybercrime management.

A (45:28)

Well, that's a low sentence for what he did.

B (45:32)

But you know what's crazy to me about this? I mean, a lot, but the odds that, that Donald Trump actually knew about this sentencing memo, saw it, was, was angry about it and, and demanded that it be removed. I find the odds of that of being like, almost impossible.

A (45:50)

Yeah.

B (45:50)

So this is, this really shows the insidious nature of this political pressure on the department. Someone far down on the food chain, not, I mean, clearly above the pay grade of these assistant U.S. attorneys. Saw that, saw those mentions and was like, we better get this out of here because someone's going to see it and not like it and we'll all get fired.

A (46:15)

You know what it reminds me of?

B (46:17)

What's that?

A (46:18)

First administration. And any mention of Russia in any document or threat assessment to Congress or.

B (46:25)

CISA or it's like self censorship. This is what happens.

A (46:29)

They all eventually learned you don't mention Russia around Donald Trump.

B (46:33)

Yeah. You just do not do it. You gotta, you gotta toe the line. And that's how, that's how this pressure really works. Because it, it doesn't. It's not just the big headline grabbing things we see all the time. It's the little decisions that are happening every single day in all kinds of different ways.

A (46:49)

I wonder if Judge Juice Box got a dressing down. She signed off, I guess, originally on this sentencing memo. Judge Pirro. Yeah, Janine the. The.

B (46:59)

Yep.

A (47:00)

U.S. attorney in D.C. hurts me to say that.

B (47:03)

I don't know, maybe she's the one that told them to get it out of there. Like, who knows?

A (47:07)

Well, they turned it in, so somebody signed off on it, but it might not have gone all the way up to her. Who knows? I. I hope that some crackerjack reporting reveals what went on behind the scenes and the Justice Department to reveal how this got whitewashed.

B (47:21)

That would be great.

A (47:22)

All right, time for some listener questions. What do we have? Oh, look, we have a little bit of time to answer a listener question this time. I know.

B (47:33)

Well, we're going to start with a correction. And this is. I think this is a mistake that I laid out there last week. We were talking about lawyers that people were obtaining, and we were, I think, talking about John Bolton. And I. I stated that Bolton's lawyer was Preet Bahara. I was.

A (47:52)

Yeah.

B (47:53)

Yeah. So Bolton's lawyer is actually Abby Lowell. That's right.

A (47:58)

That makes more sense.

B (47:59)

Yeah. He's one of the most highly kind of sought after defense lawyers in D.C.

A (48:04)

Yeah, you said that. And I was kind of like, huh, Preet? Really?

B (48:06)

Yeah.

A (48:07)

Okay.

B (48:07)

I feel like I knew that was wrong when it came out of my mouth, but I didn't know the right answer, so I just kind of left it out there. So sorry for that. That's my bad. Preet is actually representing Adam Schiff.

A (48:17)

That makes more sense.

B (48:18)

Yeah. Yeah. So thanks for that correction. Okay, so onto the question. This question comes to us from Jessica, and it really made me think a lot about our good friend Steve Vladik and the things that he's been writing on his substack recently, which I recommend highly. I know that you're a huge supporter of his as well. Jessica said. Thanks for all the questions. Thanks for the all questions episode. Not only was it informative, but it made me brave enough to ask my question. There's an Andy DWI from Parks and Rec meme that says, and at this point, I'm afraid to ask my question. Feels like that, but I feel like I missed something. In civics class, you often refer to the Supreme Court's shadow docket, and I don't really know what that means. Also, are they using it more often recently, or has it always been a thing? Is it a preference of John Roberts? And if so, why do other appellate courts have a shadow docket? Are there checks to this power? Thanks for any info. So, great question. And it is, like, super relevant right now because the shadow docket is really ascendant right now, it's really being used way more now than it has been before. So the shadow docket is just another kind of creepier name that they give to what's officially known as the emergency docket. And the emergency docket is a thing that was really created to give the court an opportunity to, like, weigh in very quickly on an emergency matter that has to be decided quickly. So, example, if it's an immigration challenge and the planes are on the Runway about to spirit people away to El Salvador and you lose at the lower court, you might run to the Supreme Court and file an emergency request or, and a request for emergency consideration to stop your client from being deported to a foreign country before it happens. So that's like a reasonable place for the court to weigh in. Unfortunately, they've been doing it on a ton of stuff lately. And the downside to the emergency docket is that matters get decided without extensive briefing, without, you know, these extensive memos and briefings from the, from the, from the litigants in the matter, whether that's the government or two private people, whatever it is, and without any argument. So it's. Now, it's also being used a lot in the context of injunctions. So if you, let's say the government is doing something that you think they shouldn't be doing, you file a lawsuit against them, and then you request that the court impose, you know, enjoin them, like, stop them from doing that thing right away until it's decided whether or not that thing is legal.

A (51:12)

And let's use a, let's use an actual example that has happened recently with temporary protected status. For example, for Afghans who helped us in the, in the post 9, 11 wars, they had been given temporary protected status to be here legally. And Donald Trump lifted their temporary protected status. They filed a lawsuit. The lower courts stopped them from being deported. Right. And Trump said no, and, you know, went through the appeals process, and it goes up to the Supreme Court and the Supreme Court without deciding on the merits of whether these Afghans should retain temporary protective status, they temporarily block the lower court's block while they consider it, which effectively allowed Trump in the meantime, to keep deporting them, deport all of these Afghans after taking away their temporary protected status. Now, the Supreme Court could come back later and said, we've decided that was wrong, but they're already gone.

B (52:16)

Right?

A (52:16)

So it's kind of like, and justices and judges have been complaining to Justice Roberts about this during judicial conferences, saying this shadow docket, these emergency decisions without briefing without oral argument, are giving Donald Trump the impression that he can do what he wants when the merits still haven't been decided.

B (52:36)

That's absolutely right. And it leads to the most significant harm, which, as you said in this example, is people being potentially illegally deported. Not that's. That potential illegal action is not stopped, and they suffer as a result. But it also comes down to a really trick, kind of tricky element of the law around restraining orders. Right. So the standard that the court uses to determine whether or not they should leave the restraining order in place, like the order that stops the government is one of the factors, is kind of chances of victory on the merits. Like, they look at the claims of the plaintiff and the claims of the government, and they kind of make a call, a substantive, somewhat substantive call of who's likely to win in the long run. And so they're basically pre deciding that question of legality within the context of the tro. They are deciding, okay, yeah, but you really have the better argument. You're likely to win on the substantive argument without the benefit of any submissions, any papers, any arguments, any, you know, anything like that, which upends the entire Supreme Court process. They shouldn't be making decisions about the substance of an issue until they have each side. Each party has had the full opportunity to be heard, but the emergency docket allows them to just cut right to the chase and decide, you know, based on whatever, how they think this is going to play out. It's really. It's under. It's one of the many things right now, I think, that's undermining the legitimacy of the court, particularly among court watchers who really follow this stuff.

A (54:25)

Yeah. And what I recommend, Jessica, is you subscribe to one first, which is Steve Laddick's substack. He talks a lot about the emergency docket. He actually has a spreadsheet of all 30 emergency considerations in front of the Supreme Court right now and where they're at and what it's allowed and what harm has resulted from them. And he also has a book called the Shadow Docket. I think he's the one who coined the phrase shadow docket. As a matter of fact, somebody can write in a correction if I'm wrong there. But I think he's the one who coined the phrase, and he gives a. The. The reason. Look, I'm not a smart woman, Jessica. The reason I sound smart is because I read Steve Vladic and I talk to people like Andy McCabe and Pete Struck and Joyce Vance and Barb McQuaid and Dahlia Lipton, I think you get.

B (55:11)

A little smarts beyond those conversations.

A (55:13)

I'm just saying, I will say that I'm smart enough to understand what you all are saying makes me feel pretty good and that I can convey it to other people in layman's terms, which Steve Vladek does brilliantly as well.

B (55:26)

He does, he does.

A (55:27)

So that's what I would recommend. For more information on the shadow docket, read his book get it for your friends and family for the holidays. It's a page turner. It will upset you, but it is a phenomenon of this Robert's Court. It is being used in such excess right now. And Dahlia Lithwick talks a lot about it on Amicus, her podcast and in her book. And so that's what I would recommend for more information on the shadow docket. But that's the long and short of it. An excellent question. There's so many times we just throw these terms around without really explaining what they are. So everyone, if you have a question, don't be afraid to ask it. That's how I learn stuff. And nothing is too obscure or on the nose. So send it in to us by clicking on the link in the show notes and we'll see if we can read your question on the air. And if not, we save all these and we're going to be doing more of those bonus questions episodes and if you want to get some, maybe, maybe a question you have was answered in our last episode, go give it a listen and then if not, click on that link in the show notes and submit your question to us. We really appreciate it. They're super thoughtful questions and thanks so much for asking them. That is our show for this week. I'm sure there will be plenty to talk about next week, my friend.

B (56:42)

Heck yeah. But we are. We have seconds to get out under an hour, which I think we're going to do. So I'm good. I'll see you next week.

A (56:51)

We'll see you next week. I'm Alison Gill.

B (56:53)

I'm Andy McCabe.

A (56:54)

Unjustified is written and executive produced by Alison Gill with additional research and analysis by Andrew McCabe. Sound design and editing is by Molly Hockey with art and web design by Joelle Reeder at Moxie Design Studios. The theme music for Unjustified is written and performed by Ben Folds and the show is a proud member of the MSW Media Network, a collection of creator owned independent podcasts dedicated to news, politics and justice. Us for more information please visit mswmedia. Com.